DUGGAN v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Application no. 31165/16
Pamela DUGGAN
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 12 September 2017 as a Committee composed of:

Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,

and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 25 May 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Pamela Duggan, is a British national, who was born in 1958 and lives in London. She was represented before the Court by Ms Marcia Willis-Stewart QC of Birnberg Peirce & Partners, a lawyer practising in London.

2. The facts of the case, as submitted by the applicant and set out in the domestic court decisions, may be summarised as follows.

A. The circumstances of the case

3. The applicant is the mother of Mark Duggan.

4. On 4 August 2011 at about 6.13 p.m. police officers acting on intelligence that Mr Duggan had possession of an illegal firearm, intercepted and stopped the minicab in which Mr Duggan was a passenger. As the minicab came to a halt, Mr Duggan exited the minicab onto the pavement.

5. Two of the police officers identified in the subsequent investigations as V53 and V70 got out of their car and stood on the pavement at the rear of the minicab. V53 shot twice, both shots hit Mr Duggan, the second shot was fatal. No-one else fired a gun.

6. Immediately after the shooting, only the officers involved in the operation were at the scene. The Metropolitan Police Service (“MPS”) notified the Independent Police Complaints Commission (“IPCC”) of the fatal shooting shortly after the incident. The IPCC commenced an investigation at 7.20 p.m. that evening.

7. All the police officers at the scene who saw anything relevant made notebook entries after their return to their bases. They did not give statements until 7 August 2011. Prior to making their notebook entries, the officers were seen by a doctor, a Police Federation representative and a solicitor. They were warned against conferring, but no step was taken to prevent them from doing so.

8. On 7 August, the officers sat together when writing their statements. Again, they were warned against conferring but were not prevented from doing so. According to the later investigations (see paragraph 16 below) this was consistent with normal practice and guidance issued by the Association of Chief Police Officers (“ACPO”). The MPS provided the witness statements to the IPCC.

9. Following Mr Duggan’s death there were widespread disturbances and rioting in England during August 2011. Later reviews concluded that the fatal shooting of Mr Duggan was an important contributory factor in provoking those disturbances (see paragraph 11 below).

1. Investigations and inquiries

(a) Parliamentary Inquiry

10. On 14 December 2011 the House of Commons’ Home Affairs Committee published its Sixteenth Report entitled “Policing Large Scale Disorder: Lessons from the disturbances of August 2011”.

11. The report followed an inquiry open to the public, which heard from 49 witnesses and was provided with 48 pieces of written evidence from individuals and organisations. The inquiry investigated a number of aspects of the rioting which occurred in August 2011, including the death of Mr Duggan and its impact on the events that followed. The inquiry concluded:

“81. In the aftermath of the riots and looting in London and in a number of other cities, there was a search for immediate explanations and causes. We, with the encouragement of the Government, agreed to undertake an inquiry. We hope that this report provides a useful insight into the events themselves but if anybody hoped that we would find specific causes, they will be disappointed. It has been clear from the start that the death of Mark Duggan acted as a trigger. It is also clear that there was a great deal of "copycat" activity. But the clarity ends there”.

(b) Inquest

12. An inquest into the death of Mr Duggan took place at the Royal Courts of Justice between 16 September 2013 and 9 January 2014. The inquest was conducted by a senior judge acting as Coroner sitting in public with ten jurors. It took evidence from 93 witnesses, and statements were read from a further 23 witnesses. The IPCC provided the inquest with documents, witness statements and expert reports which it had gathered in various fields (see paragraph 17 below) including reports on ballistics, gunshot trauma, DNA fibre transfer, gunshot residue, toxicology, fingerprints, blood staining and CCTV footage. The inquest also gathered its own evidence.

13. By a majority of eight to two, the jury concluded that the killing was lawful, that is to say that it was more likely than not that Mr Duggan’s death was the result of the use of lawful force. No jurors concluded that the killing was unlawful; two recorded an open conclusion.

14. On 29 May 2014, in accordance with Paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009 (see paragraph 36 below), the Coroner produced his “Report to Prevent Future Deaths”, which sets out a number of “concerns”.

15. “Concern 2” in the Report states:

“Comprehensive accounts were not taken from the police witnesses at the first possible opportunity.”

16. The report goes on to detail the problems identified by the Coroner under this heading and concludes:

“64. ... Firstly, V53 was regarded as a “principal officer” without there being any apparent decision being made about who was, and who was not, in that category. For example, W70 was not included in it, yet when he gave his full account it was evident that he had decided to fire, and W42 was included despite not having decided to fire. Secondly, there was considerable scope for conferring before any account was given. Thirdly, prior to even those accounts being given, the officers spoke to a Police Federation representative and to a solicitor. That solicitor was plainly acting in the best interests of his clients. Nothing I say should be seen as being critical of him. Fourthly, the delay in taking statements created a real risk of evidence being lost. Finally, the fact of the officers gathering in a room together for many hours to compile statements created a perception of collusion.

65. What the MPS did was in accordance with national practice, much of it sanctioned or encouraged by ACPO. I believe it may not be the best possible practice. Indeed, I understand that the MPS has already strengthened the non-conferring warning, and a senior officer would now by present in the Post Incident Management Suite with a view to ensuring that the process is open and transparent.”

(c) Investigation by the Independent Police Complaints Commission

17. On 24 March 2015 the IPCC published the conclusions of its investigation into the shooting. The investigation examined the shooting of Mr Duggan, the events leading up to it and the immediate aftermath. The investigation gathered more than 1200 documents, 500 witness statements and 340 exhibits. The IPCC also obtained forensic analyses of the following types: DNA profiling; firearms and ballistics; gunshot residue analysis; fibre analysis; toxicology; pharmacology; finger and palm print; bio-engineering and CCTV footage. The investigation also considered complaints made by family members about the conduct of police officers, none of which related to police collusion, and none of which were upheld on the evidence.

18. The investigation arrived at 24 Findings. Under “Finding 21” the investigation concluded that:

“... it had not found material evidence to undermine V53’s assertion that he had an honestly held belief: (1) that he saw a firearm in Mr Duggan’s right hand and that Mr Duggan’s right arm was beginning to move; and (2) that his life or that of his colleagues was in imminent danger.

V53’s first shot was aimed at Mr Duggan’s central body mass and, because he still perceived the threat, he fired a second shot at Mr Duggan. These two shots occurred in rapid succession and in the context of V53’s honestly held belief (as asserted) constituted the use of reasonable and proportionate force by V53.”

19. Under “Finding 24” which concerned the explanation for the location of the illegal firearm at the time of the shooting the IPCC remarked:

“The IPCC is aware the [police] officers were located within a room and conferred when completing their EAB’s and their statements dated 7 August 2011. The potential effect of this conferring on the credibility of their evidence has been fully considered throughout. The truthfulness and accuracy of the officers’ accounts has never simply been accepted. The IPCC has attempted to probe, challenge and question the officers’ evidence throughout the investigation. The IPCC is also of the view that locating officers in one room in this manner is inadvisable. The IPCC is engaging in on-going policy development in this area following the recommendations of the external review of the IPCC investigation into the death of Sean Rigg. However, after a critical assessment of the officers’ evidence, the fact they were located within one room does not appear to have undermined the credibility of their evidence in this case. That view is based on a number of factors.”

20. Those factors were the consistency of the evidence given by V53, the police officer who fired the shots, and the fact that he gave his first accounts of the event separately from the other officers. Also, the evidence of the other officers differed appropriately (if they had colluded it would be more likely they would have said the same thing), and key elements in their accounts were supported by forensic and video evidence.

2. Domestic proceedings

(a) The first judicial review proceedings, R (Duggan and Delezuch) v. ACPO, IPCC and others

21. The applicant applied for permission for judicial review following the death of Mr Duggan. She made three arguments under what the High Court referred to as the “adjectival duty arising under Article 2”.

First, the Police Complaints and Misconduct Regulations read with the Police Reform Act 2002 were incompatible with the adjectival duty because they do not give the IPCC any general power to compel a police officer centrally involved in a fatal shooting to attend an interview.

Second, the ACPO acted in breach of the adjectival duty because the guidance issued by it did not include appropriate measures to reduce the risk of officers conferring before producing their individual accounts of a fatal shooting.

Third, the IPCC acted contrary to the Article 2 duty in failing to issue directions to prevent officers from conferring.

22. The request for permission was refused on the papers on 19 December 2012.

23. The request was renewed. In the renewed request the first argument was abandoned because the impugned Regulations had been replaced by new Regulations (see paragraphs 40 to 43 below). On 18 June 2013 the High Court gave its decision refusing permission, having joined the request with that in an unrelated case concerning the investigation into the death of Mr Delezeuch following his arrest and transfer to hospital.

24. In respect of the second argument, Lord Justice Laws concluded:

“17. ... having looked at the guidance issued by ACPO, there is not in my judgment a perceptible basis on which it can be said ipso facto to amount to a violation of Article 2.”

25. In respect of the third argument, he concluded:

“9 ... there is no legal prohibition upon officers conferring before giving an account of an incident. Such risks as conferring involves (and plainly it may involve considerable risks, and that has been made clear in the cases) do not arguably warrant a general prohibition. It is impossible to argue that the absence of overall guidance on this area under section 22 of the 2002 Act ipso facto constitutes a violation of Article 2.”

And:

“12. The IPCC take the position that it would be counterproductive for them to take steps which might countermand or contradict guidance given by ACPO”.

...

“14. In my judgment, the IPCC’s approach here is entirely reasonable and discloses no arguable violation of Article 2.”

26. The applicant again renewed her request for permission. This was refused at an oral hearing by the Divisional Court on 18 June 2013 but that decision was overturned on 7 March 2014 and the Court of Appeal granted permission.

27. The judgment of the Court of Appeal was given on 19 December 2013. By the time the Court of Appeal examined the case, the issues were focussed solely on whether the relevant guidance was unlawful because it did not require the immediate separation of police officers who either used force or witnessed its use, and therefore failed to comply with Article 2. The Court of Appeal made clear that it was examining the then current, guidance which was issued by the College of Policing in 2014, not the guidance that was in place at the time of Mr Duggan’s death. It conducted its analysis of the guidance with reference to draft guidance on the topic that had been issued by the IPCC.

28. The Court of Appeal concluded:

“62. Overall, the 2014 guidance leaves open a greater risk of collusion than would be left open by the IPCC draft guidance, thereby creating a greater risk that an investigation carried out in accordance with the guidance would fail to meet the procedural requirements of Article 2. But in the light of the safeguards that the guidance does provide, and bearing in mind that the adequacy of an investigation for the purpose of Article 2 would have to be assessed by reference to all the features of that investigation, I take the view that the risk of breach of Article 2 to which the guidance itself gives rise is a relatively low one.”

29. It also dismissed a new argument raised by the applicants that the IPCC was not independent for the purposes of Article 2 because it could not require the police to follow its draft guidance, therefore it could not conduct its investigation in the manner it wished. Lord Justice Richards commented:

“64. ... I confess to having great difficulty in understanding the argument at all ... I do not see how ACPO’s stance in issuing guidance or supporting the 2014 guidance could conceivably be said to prejudice the independence of investigations carried out by the IPCC.”

30. The applicant applied for permission to appeal to the Supreme Court, who refused on 29 March 2017 indicating that the request did not raise an arguable point of law.

(b) The second judicial review proceedings, R (Duggan) v. Her Majesty’s Coroner, the IPCC and others

31. On 24 October 2014 the High Court rejected the applicant’s request for permission to judicially review the inquest verdict. The applicant argued that it was not open to the jury to conclude that Mr Duggan was lawfully killed, although she accepted that there was evidence upon which the jury were entitled to reject a finding on unlawful killing.

32. The central issue in the applicant’s claim was the nature of the test for “lawful killing”. In particular, whether V53’s mistaken belief that he was in danger of being shot, was a ‘reasonable’ belief and whether this should be assessed by way of an objective or subjective test. Basing herself on the case law of this Court, the applicant argued that an objective test should be applied; the Coroner had therefore wrongly directed the jury and this failing had rendered the inquest inadequate under the procedural limb of Article 2.

33. After a review of the case law of this Court and the domestic case law, the High Court found that the jurisprudence did not support a conclusion that the objective test should be applied. It also stated:

“82. ....Our conclusion is that there is nothing in the complaint relating to the definition of lawful killing which could lead to the conclusion that the procedural obligation under Article 2 was violated.

89. ... [the inquest] fully satisfied the requirements of the procedural obligation as elucidated by the Strasbourg and domestic courts. The inquest secured the accountability of the police officer who shot and killed Mr Duggan. It was independent of the police and was comprehensive. It was capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. It in fact concluded that the force used was justifiable and that the death was not the result of a crime. Comprehensive evidence was secured and obtained including on the cause of death. The inquest was held in public with the full involvement of Mr Duggan’s family.”

34. The applicant appealed to the Court of Appeal, which gave its judgment on 29 March 2017 after waiting for the judgment of the Grand Chamber of this Court in Armani Da Silva v. the United Kingdom [GC], no. 5878/08, ECHR 2016. In that judgment, the Grand Chamber stated that (see § 247):

“... the use of lethal force by agents of the state may be justified under Article 2 where it is based on an honest belief which, even if mistaken, is perceived for good reasons to be valid at the time, and that the reasonableness of that belief should be determined subjectively from the viewpoint of the person acting in self-defence at the time of the events and not assessed against an objective standard of reasonableness.”

35. In light of that statement, which affirmed the conclusion of the High Court rejecting her previous arguments, the applicant changed her argument before the Court of Appeal. She now contended that the inquest was unlawful because the Coroner did not expressly tell the jury that in assessing whether the belief held by V53 was an honest and genuine one, they needed to consider the reasonableness or otherwise of the belief. In light of the wider public interest in the proceedings, the Court of Appeal allowed arguments on this new ground and dismissed it stating:

“76. There is nothing in either domestic legislation or the jurisprudence of the ECHR which requires that, in every case where a self-defence justification is raised at an inquest, a specific direction must be given to the jury that, in deciding whether a belief of imminent threat was honestly and genuinely held, the reasonableness or unreasonableness of that belief from the view point of the person claiming the defence is a relevant consideration.”

B. Domestic law and practice

1. Investigations following a death resulting from the act of a police officer

(a) The Coroners and Justice Act 2009

36. Section 5 of the Coroners and Justice Act 2009 provides that the purpose of an investigation under Part 1 of the 2009 Act (which includes where the deceased died a violent or unnatural death) is to ascertain (a) who the deceased was; (b) how, when and where the deceased came by his or her death, including, where necessary to avoid a breach of any Convention rights, in what circumstances the deceased came by his or her death; and (c) the particulars (if any) required by the Births and Deaths Registration Act 1953 to be registered concerning the death. Section 7 requires, as part of that investigation, an inquest with a jury if the death resulted from the act of a police officer.

(b) The Police Reform Act 2002 and the IPCC

37.  The IPCC was created by the Police Reform Act 2002 to conduct investigations under Part 2 of the 2002 Act into complaints against the police, conduct matters and death or serious injury matters. A death or serious injury matter is defined by section 12(2A) as

“any circumstances (other than those which are or have been the subject of a complaint or which amount to a conduct matter) – (a) in or in consequence of which a person has died or has sustained serious injury; and (b) in relation to which the requirements of either subsection (2B) or subsection (2C) are satisfied.”

38. The relevant requirements are those in subsection (2C), namely that at or before the time of the death or serious injury the person had contact (of whatever kind, and whether direct or indirect) with a person serving with the police who was acting in the execution of his duties, and there is an indication that the contact may have caused (whether directly or indirectly) or contributed to the death or serious injury.

39. Section 15 imposes various duties on local policing bodies and chief officers of police. They include, by subsection (4), a duty on the chief officer of every police force to provide the IPCC and every member of the IPCC’s staff with all such assistance as the IPCC or that member of staff may reasonably require for the purposes of, or in connection with, the carrying out of any such investigation.

2. Police procedures concerning conferring

(a) Police regulations and guidelines

40. Regulation 14D of the Police (Complaints and Misconduct) Regulations 2004 read with paragraph 19(d) of schedule 3 to the Police Reform Act 2002 conferred a limited power to require officers to attend interviews. It did not include a power to summon officers against whom no allegation of criminality or disciplinary conduct was made.

41. Those regulations were replaced on 7 March 2013 by the Police (Complaints and Conduct) Regulations 2013, which conferred on the IPCC the power to require serving police officers against whom no allegations are made to attend witness interviews in independent and managed investigations.

42. The ACPO manual in its 2008 and 2011 editions stated as followed:

“As a matter of general practice, officers should not confer with others before making their accounts (whether initial or subsequent accounts). The important issue is to individually record what their honestly held belief of the situation was at the time force was used. There should therefore, be no need for an officer to confer with others about what was in their mind at the time force was used. If, however, in a particular case a need to confer on other issues does arise, then in order to ensure transparency and maintain public confidence, where some discussion has taken place, officers must document the fact that this has taken place, highlighting:

 Time, date and place where the conferring took place;

 The issues discussed;

 With whom;

 The reasons for such a discussion.”

43. The ACPO guidance was replaced by guidance produced in September 2014 by the College of Policing, the successor body to ACPO. The September 2014 guidance is a lengthy document covering many aspects of post-incident procedures. Concerning conferring, it restates the paragraph cited from the previous versions of the guidance from 2008 and 2011 with the addition of a new sentence after the opening sentence which states:

“There may, however be a need [to] speak to one another following the discharge of a police firearm in order to resolve an ongoing operational or safety matter.”

(b) Guidance issued by the IPCC

44. On 2 June 2013 the IPCC issued a new interim policy on the role of IPCC investigators at a post-incident procedure.

45. On 5 March 2014, the IPCC issued draft statutory guidance entitled “Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters”. It reads as follows under the heading “Separation and prohibition on conferring”:

“18. Any conferring between witnesses has the potential to undermine the integrity of their evidence, and to damage public confidence in the investigation. As a result, non-police witnesses are routinely warned not to discuss the incident in question either before or after they have given their accounts. The same should apply to policing witnesses.”

COMPLAINT

46. The applicant complained that the investigation into Mr Duggan’s death failed to comply with the procedural duty under Article 2 of the Convention because the police officers involved in the fatal shooting of Mr Duggan were not kept separated until they wrote their accounts of the incident; no step was taken to prevent them from colluding; they were not instructed not to talk to one another; and they did not write their accounts until about three days after the shooting, thus creating a risk of collusion. Moreover, the national police policy is not the same as the preferred policy of the IPCC; this prevents the IPCC from bringing its preferred policy into force. Therefore, crucial parts of the investigation are controlled by the police and that is contrary to the requirement that the investigation must be wholly independent. The failure to avoid a risk of collusion and the lack of independence failed to secure public confidence.

THE LAW

47. Article 2 of the Convention, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence ...”

A. General principles

48. The State’s obligation to carry out an effective investigation has in the Court’s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such an obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation. It can give rise to a finding of a separate and independent “interference”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect (see Armani Da Silva, cited above, § 231 with further references).

49. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force (see Armani Da Silva, cited above, § 232).

50. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. This is not an obligation of result, but of means. Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (ibid., § 233).

51. The Court’s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (ibid., § 257).

B. The Court’s assessment

52. The Court notes the central part of the applicant’s complaint is that the authorities failed to prevent the risk of collusion between the police officers involved in the fatal shooting and that this failure rendered the subsequent investigation inadequate. However, this argument was not raised by the applicant at the domestic level. The closest the applicant came to raising such an argument appears to be the “third argument” raised by the applicant before the High Court in the first judicial proceedings (see paragraph 21 above), which was that the IPCC acted contrary to the Article 2 duty in failing to issue directions to prevent officers from conferring. However, the argument made at the domestic level was directed at the need for the IPCC to issue directions, not the failure to prevent the risk of collusion. In any event, it was not pursued before the Court of Appeal.

53. The other part of the applicant’s complaint to the Court is that the IPCC was not independent. This argument was not raised before the High Court but it was put before the Court of Appeal, who dealt with it in brief terms (see paragraph 29 above).

54. It is not clear from the application whether the applicant tried to raise one or both of these points before the Supreme Court. However, as the Supreme Court did not accept the applicant’s request for permission to appeal (see paragraph 30 above), it is evident that it did not examine either argument in substance.

55. In sum, the present application contains two arguments, one which arguably was not pursued at all before the domestic courts but at most was only examined at first instance, and one which was reviewed only by the Court of Appeal, who rapidly disposed of it on the basis that it was incoherent. In the circumstances, the Court cannot be certain that the applicant provided the domestic courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 § 1 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see Peacock v. the United Kingdom (dec.), no. 52335/12, § 40, 5 January 2016). However, it does not consider it necessary to decide whether the applicant exhausted domestic remedies as the application is manifestly ill-founded for the reasons set out below.

56. With reference in her application to the Court’s findings in Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007-II, the applicant argues that failing to prevent the risk of collusion impaired the adequacy of the investigation so as to amount to a violation of Article 2. In that judgment, the Grand Chamber stated:

“... as already noted, there is no evidence that [the police officers] colluded with each other or with their colleagues on the Amsterdam/Amstelland police force, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounts to a significant shortcoming in the adequacy of the investigation.”

57. In light of those findings, the Court accepts that there is some similarity between Ramsahai and Others (cited above) and the present one. In neither case was there evidence that the police officers in question colluded, but as identified by the domestic courts in this case, there was a risk of collusion (see paragraph 16 above). However, the Court’s conclusion on this point in Ramsahai and Others, was that the risk of collusion amounted to a significant shortcoming. Its finding of a violation of the procedural limb of Article 2 was based on this shortcoming in conjunction with a series of failings in the adequacy of the investigation including a failure to: test for gunshot residue; reconstruct the incident; examine weapons; make an adequate pictorial record of the trauma caused to the victim’s body, and inconsistency in the statements of the officers concerned. The investigations conducted in this case do not show similar failings. On the contrary, they were extremely comprehensive with many witnesses being examined and extensive forensic tests conducted (see section 1 above). Indeed, the applicants have not sought to challenge any other shortcoming in the adequacy of the investigations.

58. Accordingly, even accepting that the failure to prevent the risk of collusion identified by the domestic courts amounted to a significant shortcoming in the investigation in this case, it does not mean that there has been a violation of the procedural limb of Article 2. The Court observes in this connection that, according to its case law, a violation of the procedural limb of Article 2 due to the lack of an effective investigation arises where, as in Ramsahai and Others (cited above, §§ 326‑332), a failure to prevent the risk of collusion is one shortcoming in the context of others which together, amount to significant failings (see, for example Muradyan v. Armenia, no. 11275/07, 24 November 2016; Mihhailov v. Estonia, no. 64418/10, 30 August 2016; and Mızrak and Atay v. Turkey, no. 65146/12, 18 October 2016).

59. As to the applicant’s argument that the IPCC was not independent because the issuing of guidance to reduce the risk of collusion by ACPO, in practice blocked the IPCC from bring its guidance into force, the Court agrees with the Court of Appeal that this argument is unclear and it cannot see how this turn of events implies that the IPCC was not independent.

60. The Court has previously considered the IPCC to be an independent body (see Armani Da Silva, cited above, § 241). It sees no reason to change its conclusion based on the applicant’s argument. It also recalls that by analogy it has previously found that public prosecutors may inevitably rely on the police for information and support and this does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police (see Ramsahai and Others, cited above, § 343). Moreover, the possibility of review by an independent tribunal existed and the applicant made use of it.

61. The Court underlines its role is to consider the proceedings as a whole, and in the context of evaluating whether the investigation was adequate asking whether it was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and identifying – if appropriate – punishing those responsible as said in Armani Da Silva, cited above (see § 232).

62. Applying that test to the present proceedings and taking into account its analyses in the preceding paragraphs, the Court echoes the conclusions of the domestic courts that the investigations fully satisfied the requirements of the procedural obligation under Article 2. They secured the accountability of the police officer who shot and killed Mr Duggan; were independent of the police and were comprehensive; were capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and (had it been appropriate) punishment of those responsible. The applicant has only complained about the adequacy and independence of the proceedings. However, for completeness the Court underlines that the investigations were prompt, public, and accessible to the victim’s family to the extent necessary to safeguard their legitimate interests.

63. From its perspective of considering the proceedings as a whole, the Court also takes the opportunity to underline that in this particular case there were two investigations, the inquest and the IPCC investigation. The domestic courts found that the procedural obligation under Article 2 was met in this case by the inquest alone (see paragraph 33 above), for reasons which the Court finds convincing.

64. The applicant has not specified which of the two investigations were rendered inadequate by the failure to avoid the risk of collusion. However, as there were two comprehensive and independent investigations that shortcoming has a less significant impact on the effectiveness of the investigative proceedings, when viewed as a whole. Equally, even if the IPCC were considered not to be independent as the applicant suggests, this would not necessarily cause the Court to conclude there had been a violation of Article 2 in its procedural limb in light of its conclusion that the procedural obligation under Article 2 was met in any event by the inquest.

65. Finally, the Court turns to the applicant’s argument that the alleged failures in the investigation did not secure public confidence. In doing so, it recalls its conclusion that whilst the proceedings as a whole were not in violation of the procedural limb of Article 2, the failure to prevent the risk of collusion was a significant shortcoming. The facts of the present case are undoubtedly tragic and were followed by widespread public unrest. In such circumstances, the need to secure public confidence is vital. As has been mentioned in the context of ensuring “promptness”, what is at stake here is nothing less than public confidence in the State’s monopoly on the use of force (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 106, 4 May 2001, and Ramsahai and Others, cited above, § 325).

66. However, the Court cannot see that, in the circumstances, the only shortcoming identified of a failure to prevent the risk of collusion has undermined public confidence. In particular as neither the inquest nor the IPCC suggested that any actual collusion occurred, and their conclusions were not challenged by the applicant.

67. The Court also takes account of the fact that the problem of the risk of collusion was identified by the Coroner is his post-inquest report (see paragraph 16 above) and the guidance for police officers has since been updated to avoid that risk, in a way found to be compliant with Article 2 by the domestic courts (see paragraph 28 above). The Court cannot comment on that guidance in the abstract, and it may fall to be reviewed in the context of a future application. Nonetheless, the Court takes note of the active steps taken by the authorities to identify and address the risk of collusion, and the judicial review of those steps, which it considers must go some way to ensuring public confidence.

68. Finally on this point, the Court observes that in addition to the investigative steps taken and the follow up given to the investigations, there was also an inquiry carried out by Parliament into the fatal shooting examining the wider context, including the role and behaviour of the police (see paragraphs 10 and 11 above). This inquiry was no doubt an important step towards improving public knowledge and understanding of the events around Mr Duggan’s death, and therefore a confidence building measure.

69. Accordingly, the Court finds that there was no failure to carry out and effective investigation under the procedural limb of Article 2 and the application is manifestly ill‑founded.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 October 2017.

              Renata DegenerKristina Pardalos
              Deputy RegistrarPresident

Full & Egal Universal Law Academy